¶1I dissent.
¶2The plaintiff’s complaint is sufficient to pass the test of a general demurrer. We must here assume that all of the pleaded facts are true. (Jensen v. City of Modesto, 89 Cal.App.2d 835 [202 P.2d 332]; Abroms v. New York Life Ins. Co., 53 Cal.App.2d 764 [128 P.2d 391].) The complaint shows the creation of the trust; it alleges that the trustor intended only the natural born children of the life beneficiary to receive the trust *548property on distribution, to the exclusion of all other persons; that plaintiff is the only natural child of Olga Wilson, the life beneficiary; that in violation of the terms of the trust, and in 1953, the trustee distributed one-half of the trust property to Rose Wilson and one-half to the plaintiff; that at the time of the distribution the trustee represented to the plaintiff that the terms and provisions of the trust provided that such distribution be made at the time and in the manner it was made; that plaintiff relied upon the representations of the trustee and placed full faith and confidence in the trustee, and that plaintiff did not know the terms and provisions of the original trust instrument, and did not question the distribution as made by the trustee; that on or about November 1, 1957, plaintiff for the first time learned of the terms and provisions of the trust, and made demand upon Rose Wilson for the return of the trust property distributed to her. In paragraph XI of the third amended complaint plaintiff also alleges : 11 That, but for the false representations as to the terms of the trust (Exhibit ‘A’) so made to him by defendant trustee Jacob W. Pauson, plaintiff would have protested the distribution of any portion of the trust to defendant Olga Rose Wilson and the payment of dividends thereon to her.”
¶3This complaint states a cause of action which, its allegations being admitted by the demurrer, entitles the plaintiff to relief.
¶4It is held against the plaintiff that he has not sufficiently pleaded the facts to show (a) the date and manner of his discovery of the fraud or mistake, and (b) the facts and circumstances of his discovery so that the court may determine if his delay be excusable.
¶5As against a general demurrer the pleadings must be liberally construed. (Bank of America v. Vannini, 140 Cal.App.2d 120 [295 P.2d 102].) Here the plaintiff has pleaded the date of his discovery (1957), and the manner of his discovery (by reading for the first time the terms and provisions of the trust instrument itself). It is true that the plaintiff has not pleaded in detail the facts to show why he was unable to or did not have the original trust instrument before him from the date of distribution in 1953 until 1957. He has, however, alleged that up to the time of distribution he had not read the trust instrument and that he relied fully upon his trustee for the proper execution of its terms and provisions. A justifiable reliance upon his trustee is in my opinion a sufficient showing to toll any statute of limitations which might otherwise be applicable, and to excuse the plaintiff from being *549charged with a late discovery of his trustee’s false representations.
¶6Although the plaintiff has dismissed the trustee as a party and seeks no personal judgment against him, he does plead here in equity for the return of the property which the demurrer admits the trustor intended him to have. It makes little difference whether the stated basis of his suit—"false representations as to the terms of the trust”—be characterized as fraud or mistake. The result is the same—the plaintiff has lost the trust property. The dismissal as to the trustee should not bar the plaintiff’s pursuit of the trust property. (Title Ins. & Trust Co. v. Duffill, 191 Cal. 629 [218 P. 14]; Rest., Restitution, § 161; 90 C.J.S., Trusts, § 445; Witkin, Summary of California Law, pp. 843 and 2921.)
¶7The record here shows a long continued and close fiduciary and family relationship between these parties. Under the facts shown in the record, if indeed any statute of limitations is applicable at all, one need not be rigidly applied. There is an abundance of authority entitled to the highest respect which suggests a different, and I believe a better resolution of this case. In Hobart v. Hobart Estate Co., 26 Cal.2d 412 [159 P.2d 958] at pages 439-440, it is stated: "Another pertinent factor is that there was a fiduciary relationship between the parties at the time of the fraudulent representations. Although the general rules relating to pleading and proof of facts excusing a late discovery of fraud remain applicable, it is recognized that in cases involving such a relationship facts which would ordinarily require investigation may not excite suspicion, and that the same degree of diligence is not required. In Rutherford v. Rideout Bank, 11 Cal.2d 479, 486 [80 P.2d 978, 117 A.L.R. 383], it was said that because of such a relationship plaintiff could not be charged with lack of diligence even though an inquiry would have disclosed the true value of the property involved. (See also Bainbridge v. Stoner, 16 Cal.2d 423, 430 [106 P.2d 423]; Knapp v. Knapp, 15 Cal.2d 237, 242 [100 P.2d 759]; Lataillade v. Orena, 91 Cal. 565 [27 P. 924, 25 Am.St.Rep. 219]; Laraway v. First Nat. Bk. of LaVerne, 39 Cal.App.2d 718 [104 P.2d 95]; 12 Cal.Jur. 799; (1942) 30 Cal.L.Rev. 589, 591; cf. Marston v. Simpson, 54 Cal. 189; Edward Barron Estate Co. v. Woodruff Co., 163 Cal. 561, 575-577 [126 P. 351, 42 L.R.A. N.S. 125].) ”
¶8I deem it unnecessary, therefore, that the original intention of the trustor, so long maintained, should now perish in frus*550tration and defeat. I would reverse the judgment and allow the cause to be decided on its merits.
¶9A petition for a rehearing was denied February 20, 1962. Salsman, J., was of the opinion that the petition should be granted. Appellant’s petition for a hearing by the Supreme Court was denied March 28, 1962.